Friday Links


Okay, since the new Star Wars trailer was released this week, that’s really all we here at Abnormal Use can think about. We’re so distracted, mind you, that we just ended the previous sentence in a preposition! It’s a calamity! Have you seen it? If not, click here immediately. So, above, for this edition of Friday Links, you get the cover to Darth Vader #1, published this very year. After seeing the new trailer, we may need to investigate this new comic book series. Apologies for nerding out.

On an entirely different note, did you see that Nick Farr earned a shout-out this week over at Overlawyered? See here for that.

By the way, dear readers, did you all survive Tax Day this week?

Tax Day


Okay, so above is the cover of Taxman #1, a comic series about which we literally know nothing. However, based on its title alone, it seemed appropriate for this exhausting day. We here at Abnormal Use are hopeful that you have already accomplished all of your tax related tasks today. If not, we wish you well.

Oklahoma Federal Court Denies Plaintiff’s Motion for Partial Summary Judgment in Intermingling Coupler Products Liability Case

Well, yesterday, we pointed you to an article that Kyle White had written for another publication, and today, we do the same for our editor. As you may know, we sometimes contribute content to other online ventures. Last week, our editor, Jim Dedman, saw the publication on an article he wrote in DRI’s Strictly Speaking newsletter (the official publication of DRI’s Product Liability Committee). It’s an intermingling coupler case!

Here’s the first paragraph of the piece:

On Christmas Eve 2014, the U.S. District Court for the Western District of Oklahoma denied two motions for summary judgment arising from a product liability case involving a high-pressure quick connect coupler and its intermingled components. See Gregory v. Parker-Hannifin Corp., et. al. No. CIV-13-01031-M, 2014 WL 7365941 (W.D. Okla. December 24, 2014). After sustaining personal injuries while using the coupler while on the job at Kemper Valve and Fittings, the plaintiff filed suit in state court in Oklahoma against a series of defendants, those being Parker-Hannifin Corporation, Maxbar, Inc., H. Lorimer Corporation, and Kurt Walther GmbH & Co. KG. H. Subsequently, H. Lorimer Corporation removed the action to federal court. Following the removal, the plaintiff amended the complaint to assert to two causes of action: product liability and, in the alternative, negligence.

You can read the full article here.

South Carolina Federal Trial Court Grants Summary Judgment in Mesothelioma Case

As you may know, sometimes we here at Abnormal Use contribute content to other online ventures. Last week, our own Kyle White saw the publication on an article he wrote in DRI’s Strictly Speaking newsletter (the official publication of DRI’s Product Liability Committee). The subject is one he knows well: asbestos jurisprudence in South Carolina.

Here’s the first two paragraphs of the piece:

A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in mesothelioma cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from a Foster Wheeler boiler caused the decedent’s mesothelioma. In viewing the evidence in the light most favorable to the Plaintiff, the Court determined that co-worker testimony established that a Foster Wheeler boiler may have been present in the decedent’s vicinity during his employment at Westvaco Pulp and Paper Mill in North Charleston, South Carolina. Additionally, the evidence showed that some of the boilers at the plant may have been insulated with asbestos and that asbestos may have been airborne in the plant due to work on equipment at the plant. However, there was no direct evidence that the possible Foster Wheeler boiler was insulated with asbestos, or, in turn, that asbestos insulation on a Foster Wheeler boiler was manipulated such that it was breathed by the decedent.

A sub-issue in the case involved an affidavit submitted by the Plaintiff in opposition to the motion for summary judgment. Apparently, the affidavit was executed by the affiant in another, unrelated case. The affiant stated that Foster Wheeler specified asbestos insulation for its boilers during the relevant time frame. Foster Wheeler argued that the Court should strike the affidavit as irrelevant, pointing to deposition testimony that showed that the insulation specifications for Foster Wheeler’s boilers depended on the terms of the contract with a particular customer and the fact that asbestos insulation happened to be specified in one contract does not mean that asbestos insulation was specified in the contract with Westvaco. The Court agreed, granting the motion to strike.

You can read the rest of the article here.

We encourage you to give it a read.

Friday Links


Well, you may recall that last week we here at Abnormal Use published an April Fool’s Day post suggesting that a federal court had halted the production of the planned reboot of “Twin Peaks.” We must be clairvoyant. Just a few days later, famed director David Lynch announced that he would not longer be associated with the project (leading some to believe that the Showtime premium cable network might not go forward with the program without the auteur’s participation).

Did we do this? Are we the cause of this?

We tend to think we are not the proximate cause of this debacle, but it did cross our minds.


Whatever the case, we’re crestfallen that we might not be able to see a new version of the series with Lynch at the helm.

By the way, did you remember that Laura Palmer’s father, Leland (played by Ray Wise in the show), is a lawyer?

Friday Links


We hope you enjoyed Wednesday’s post – our sixth April Fool’s Day blog entry.  Though some find April 1 joke posts to be silly and unnecessary, we have to admit that we love writing them.  If only you, our dear readers, loved reading them.  Maybe you do. If you missed it, the title was  “Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On ‘1990’s Estoppel’ Grounds.” How about that? Popehat even tweeted it!

That said, one curmudgeon from our office emailed us on Wednesday and remarked: “I might have appreciated it more if I had ever actually seen an episode of either of those shows.  Their relative obscurity, however, probably makes them perfect fodder for an April 1 post.” Relative obscurity? Sigh.

So, of course, for today’s edition of Friday Links, we had to go with an X-Files comic book cover. In fact, above, you’ll find the cover of The X-Files #1, published by Topps way, way back in the halcyon days of 1995.

By the way, in the interests of completism, we present these links to our past April Fool’s Day posts:

In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law” (April 1, 2014)

North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same” (April 1, 2013)

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012)

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011)

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010)


Federal Court Enjoins Reboots of “Twin Peaks” and “The X-Files” On “1990’s Estoppel” Grounds

Big news from the West Coast in entertainment litigation. This morning, a federal court in California enjoined certain Hollywood studios and related companies from beginning production on the recently announced reboots of the 1990’s television series “Twin Peaks” and “The X-Files.” See Chambers v. Showtime Networks, et al, No. 4815162342 (M.D. Cal. April 1, 2015). The Plaintiff, Reginald Chambers, brought suit upon hearing news of the planned remakes of the aforementioned television programs. Chambers, a former denizen of the Usenet television forums in the 1990’s and a self-described “1990’s enthusiast,”claims he suffered bouts of severe depression, memory loss, and “unprompted wistful musings.” As a result, he sued in California state court under various theories of recovery, including negligence, fraud, unfair and deceptive trade practices, and the archaic “tortious interference with the past” cause of action (abrogated by most state courts and last invoked in the litigation which arose from the 1974 film adaptation of The Great Gatsby). Chambers also sought an injunction compelling a halt to the production of the two programs.

He sued what he called “a coterie of callous and temporally insensitive Hollywood defendants,” including Showtime Networks, Inc., CBS Corporation, and Lynch/Frost Productions, arising from the planned “Twin Peaks” reboot, and Twentieth Century Fox Television, Inc. and Ten Thirteen Productions as a result of “The X-Files” continuation. For their part, the defendants removed the case to federal court and filed various responsive pleadings, including a motion to dismiss on laches groundsThe Plaintiff’s claims against individual defendants Kyle MacLachlan and David Duchovny were dismissed in light of certain testimony from the defendants’ retained testifying expert, television critic Frederick Lowell, who opined that “television actors cannot be held accountable for their actions.” However, the federal court denied the corporate defendants’ motion to dismiss as premature and granted the motion for temporary injunction.

In supporting its conclusion, the court noted that “there is no finer episode of television in the 1990’s that ‘Clyde Bruckman’s Final Repose,’ the award winning episode of the “The X-Files” released in 1995, and to dilute it with later, lesser works in the same series would be sanctionable at best.” Further, the court found that the ambiguity of the original 1991 “Twin Peaks” finale “cast such a wonderful pall over the television landscape at the time that to undo it now via a reboot would harm both Plaintiff and the general public at large.” Further, the court held:

The federal courts have always served as the gatekeepers of the nation’s nostalgia. See In re: Buddy Holly, 235 F. 201, 202 (5th Cir. 1958); see also Iron Butterfly v. Nixon, 257 F. Supp. 47, 47-49 (E.D.N.Y. 1969). As such, federal district courts may halt a defendant’s actions when they constitute either a threat to public memory or cherished institutions of popular culture. See Estate of Hitchcock v. Van Sant, 626 F.2d 97, 101-102 (9th Cir. 1998) (noting, in case involving remake of the 1960 film Psycho, the role of the federal courts as “the praetorian guards of beloved American cinema”). In the case at bar, the Plaintiff invokes a novel theory of “1990’s estoppel,” in which he contends that “what happened, happened” and that the popular culture of that decade cannot be relitigated by the Hollywood of today. In advancing this theory, the Plaintiff points to a number of cases in support of this conclusion. See Tennant v. Eccleston, 650 U.S. 199 (2009) (finding that “matters of temporal stability and nostalgia are within the jurisdiction of the federal courts”); see also Kurtz v. George Lucas, Lucasfilm Ltd., and Indus. Light & Magic, No. 2011-1138-THX (W.D.S.C. April 1, 2011) (finding Star Wars prequels unreasonably dangerous and defective); Holder v. Swift, No. 15-1975 (S.D. Tex. January 7, 2015) (questioning a musical artist’s ability to name a commercial recording after a  year which that performer does not herself remember); but see Reznor v. Cash, 518 F. Supp. 2d 752 (N.D. Cal. 2001) (finding that a remake of a popular musical work representative of a particular decade can be “so transformative that any dispute arising from it is nonjusticiable in the federal courts”). He also points to this court’s failure to halt the production of the reboots of “Beverly Hills, 90210″ and “Dallas” as evidence of the societal damage which may result when federal courts abstain from this duty. After considering the weight of the evidence presented, the likelihood of success on the merits, and the interests of the general public at large, I hereby grant the Plaintiff’s request for an injunction prohibiting production of the aforementioned programs.

(citations included).

Curiously relying on a series of 19th century cases arising from that era’s litigation of Impressionist works, the court also rejected, by analogy, the defendants’ damages argument that “no ennui can stem from programs originally released in standard definition.”

Representing the plaintiff was well known California entertainment attorney Thomas Wyatt, who had previously argued, successfully, that it was within a California federal court’s inherent power to prevent the rock band Smash Mouth from reuniting and embarking upon a nostalgia tour. Reached this morning via email, Mr. Wyatt indicated that he regretted that he could not amend his pleadings in time to add the production company rebooting the television sitcom “Coach” as defendants in the matter.

Friday Links


As we previously mentioned, our editor, Jim Dedman, has put together a CLE program for April 1, 2015 in Charlotte, North Carolina on the Salem Witch Trials featuring noted author Katherine Howe. Here’s the information straight from the Mecklenburg County Bar Association website:

The Salem witch trials live on in infamy as one of the most notorious examples of injustice ever perpetrated in American history. Over 100 people were accused and 19 people were put to death by the state for a crime which, less than a generation later, was held to be largely imaginary. Perhaps most chillingly of all, the trials were conducted with great care, and according to legal precedent in place in the early modern Atlantic world. This talk will examine the legal contours of the Salem witch trial, including similarities and differences between other witch trials from the same period, the nature of evidence, and precedent-setting cases that influenced the conduct of the Salem trials, with the goal of posing challenging questions about the historically-contingent nature of justice.

Speaker Katherine Howe is the New York Times bestselling author of four novels and a nonfiction book about witches. She has commented about history and fiction writing on “Good Morning America,” “CBS This Morning,” the National Geographic Channel and NPR. Her fiction has been translated into over 20 languages. A native Texan, she lives in New England and upstate New York, where she is at work on her fifth novel.

Above, of course, is the cover of The Physick Book of Deliverance Dance, Ms. Howe’s first novel.

On another note, according to the ABA Journal, “[t]he family of an 11-year-old who died after eating a chocolate chip cookie that may have contained nuts has sued the supermarket chain that sold it.” We here at Abnormal Use have written about these types of suits in the past. In fact, back in July of 2012, our own Stuart Mauney wrote a piece about packages of peanuts which contain the warning “MAY CONTAIN PEANUTS.” You can read that post here.

And for our favorite tweet of week, we turn to the one below, which says something that needed to be said:

Supreme Court of New Hampshire Reminds Us How Facebook Works

So, it’s 2015, so we’re not sure that a court needs to dedicate a section of an opinion to “Explanation of Facebook Technology Relevant to this Case.”

In February, the Supreme Court of New Hampshire did just that in an appeal arising from the defendant’s convictions for stalking and witness tampering.

In its opinion, the court noted as follows:

Facebook is a widely-used social media website, available for free to anyone with an e-mail account, whose stated mission is to give people the power to share and make the world more open and connected. Facebook and other social media sites are becoming the dominant mode of communicating directly with others, exceeding e-mail usage in 2009. With over one billion active users, Facebook is revolutionizing the way people behave and interact with one another in their everyday lives through site functions that facilitate sharing information, such as a user’s “profile page,” the ability to send personal messages to other users, and by allowing users to become “Facebook friends” with other users.

A profile page is a webpage that is intended to convey information about the user. By default, Facebook profile pages are public. When a user shares something publicly, anyone including people off of Facebook can see it. Alternatively, Facebook users can restrict access to their Facebook content using Facebook’s customizable privacy settings. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.

State v. Craig, No. 2013-229 (N.H. Feb. 12, 2015) (quotations and citations omitted).

We’ve deleted the citations, but we note that the court cited to law review articles and quoted from Facebooks pages directly.

But are these basic principles really so novel that they need to be stated and then supported with citations? If the authority the court is citing indicates that Facebook has one billion active users and that social media usage has surpassed email as a communications medium, isn’t it a familiar enough phenomena in society to go without saying? Can’t the court simply jump to the discussion of the relevant Facebook usage facts without pausing to remind us how it works? Do the terms profile page and Facebook friends really need to be in quotation marks at this point?

Friday Links


So, as you know, dear readers, we are in the habit of posting legally themed comic book covers on our Friday posts. After five years of doing so, it’s become increasingly more difficult to find such covers. We often rely on a series of wonderful comic book websites to assist us in our searches for such covers, and it is not uncommon for us to input law related search terms into the search fields of the website at issue. This week, we input the search term “police,” to see if there might be some sort of criminal procedure we could explore in the comic book world. This search led us to the comic book series above, Jughead’s Time Police.

Just look at that cover. “Jughead! No! Don’t eat that spaghetti! You’re destroying the whole world!”

Here’s how Comicvine describes the narrative of the short lived series:

Short-lived science fiction series by Archie Comics. Jughead is recruited into the Time Police, a crosstime organization devoted to guarding the timestream from paradoxes and alterations. His partner and love interest is January McAndrews from the 29th century.

This is the greatest idea in the history of world literature. We are crestfallen to learn that the series lasted but six issues.

On an unrelated note, who watched HBO’s “The Jinx”? Any thoughts?

Pro tip: Follow our writers Nick Farr (@NAFarr) and Kyle White (@Kyle_J_White) on Twitter.